By Gary Meyer and Patric Hedlund
(view official court documents
at end of this article)
An important battle for the right to report about local political debate came to a close last week.
Hometown Publishing, publisher of The Mountain Enterprise, had been sued for reporting the news about a bitter 2005 election in Pine Mountain.
State laws protecting freedom of speech were invoked in the defense. Over the past twenty years, California lawmakers have explored avenues to protect the public’s right to participate in governance, especially where political debate is concerned.
During the 1980s a type of lawsuit intended to chill political debate became prevalent when corporations (mostly large real estate developers) began suing outspoken citizen critics as a means of silencing opposition to development projects. Although the suits would often lose in court and the critics would be vindicated, there was a chilling effect on debate.
Threat of devastating legal fees was used to intimidate and to silence those who wished to engage in public dialogue about controversial issues. Successfully defending oneself from claims of defamation was extremely expensive. These suits were having their intended effect of silencing debate about issues in the public interest.
In 1992, California legislators passed a law designed to protect citizens from Strategic Litigation Against Public Participation (SLAPP). The law, Section 425.16 of the California Code of Civil Procedure, became known as the anti-SLAPP statute. Gradually, the courts began allowing the newspaper industry to use the “anti-SLAPP Motion To Strike” which allowed the court to consider—prior to discovery for a trial—arguments to strike a complaint on grounds that its intent was to suppress protected speech.
The media that reported on this public debate—and who also found themselves sued for their reporting—began to rely on the anti-SLAPP statute which requires a plaintiff to prove that their lawsuit has “a probability of prevailing” or face immediate dismissal —thereby substantially increasing the protection of free speech activities. Interpreting the anti-SLAPP statute, the courts began voicing the opinion that—where discussions of public interest are concerned—freedom of speech and freedom of the press are afforded the same protection.
Fast-forward to the spring of 2005 and the Pine Mountain Club Property Owners Association’s (PMCPOA) annual election for its Board of Directors. Pine Mountain resident and real estate investor, David Seidner, was gearing up to campaign heavily for his preferred slate of candidates in that election.
Seidner was invited, with others, to assist The Mountain Pioneer with its May 2005 Candidates Forum. He was asked to join a committee formed by Editor Patric Hedlund to consolidate questions from those offered by the community to ask the candidates in the newspaper’s forum pages. That was a positive process applauded by all. But, as many readers will remember, the campaign took a turn just a week later. It became extremely negative.
The slate supported by Seidner led the way with an ad on May 8, 2005 from “the Pine Mountain Club Plain Speakers” calling their opponents “Flimflam candidates.” Candidate Jack Throckmorton followed suit. Seidner and Throckmorton placed full page ads in The Mountain Enterprise, taking shots at one another through accusations.
Seidner was not a candidate himself. He was an investor in PMC properties serving as campaign manager for one faction, and his paid ads made his viewpoints and his name central to the public debate. He declared in the headline to his May 20, 2005 full page ad that candidate Jack Throckmorton had taken the association “To the Brink of Bankruptcy” during his term as PMCPOA’s treasurer in 1999. Throckmorton responded in his “He’s Just Plain Wrong” ad that Seidner had used insider information as a member of the PMCPOA Finance Committee to purchase a vehicle from PMCPOA for $2,000 below Blue Book price in 2005, before anyone else could place a bid.
Seidner countered by purchasing two side-by-side full pages in the June edition of The Mountain Pioneer to detail his reasons for opposing the people running against his own candidates. He signed his name, as if it was a personal letter. On May 27, editor for The Mountain Enterprise, Patric Hedlund, published a commentary which quoted from her interview with the Certified Public Accountant who issued PMCPOA’s 1999 annual financial report. CPA Gary Porter stated that the “bankruptcy” accusations in Seidner’s ad were inaccurate and “reckless.”
Porter explained that the 1999 board had inherited a profit from 1998 assessments and the sale of a property. California Civil Code (Section 1366.1) prohibits a nonprofit organization from accumulating a profit. The board chose to lower assessments in 1999 to compensate. Porter said his report was being misquoted and misused in Seidner’s political ads. In June 2005, ballots for the PMCPOA election were counted. PMCPOA’s July 2005 Condor newsletter reported the “highest turnout in PMC history” for the election. Throckmorton and his slate won 58% of all votes cast. Seidner’s slate lost definitively.
A year later, on May 26, 2006, one day before the statute of limitations would expire, David Seidner filed a lawsuit against newly elected Director Jack Throckmorton and The Mountain Enterprise, claiming that Hometown Publishing, Editor Patric Hedlund and Jack Throckmorton had defamed him in both editorial and advertising sections of the newspaper and had been “part of a conspiracy… aimed at subverting and corrupting the election process…including by tampering with election materials (including a quantity of PMC ballots), which were diverted to…co-conspirators by some illegal means as yet not completely ascertained by Plaintiff.”
Offering no proof, Seidner appeared to be making the exotic claim that his candidates’ loss in the election had occurred not because the voters made independent choices to reject his ideas and his tactics, but because the newspaper had conspired to steal ballots and somehow tamper with the ballot box. The Managing Publisher and the Managing Editor of the The Mountain Enterprise, together with the newspaper’s legal counsel and legal advisors, determined that Seidner’s allegations constituted a classic example of a Strategic Litigation Against Public Participation (SLAPP) action.
Seidner’s claims, they agreed, were without merit, arose from political debate and were intended to silence the newspaper’s reporting on issues of local public interest. The Mountain Enterprise was represented by Thomas R. Burke and Susan E. Seager, media lawyers with Davis Wright Tremaine LLP, among the nation’s leading media law litigators.
David Seidner was represented by Jack Draper, a Bakersfield attorney who was Chairman of the PMCPOA Board of Directors in 1985-86. Draper also represented Seidner in legal actions against the property owners association in 2006 for issues arising from Seidner’s ownership of multi-family properties in Pine Mountain.
The Mountain Enterprise filed its anti-SLAPP “motion to strike” on October 2, asking the court to dismiss Seidner’s suit as baseless. The anti-SLAPP statutes provide for the prevailing party in an anti-SLAPP motion to be awarded attorney’s fees. Had he chosen to proceed with litigation, Seidner could have faced the prospect of paying tens of thousands of dollars to The Mountain Enterprise and The Mountain Pioneer if the court granted the anti-SLAPP motion.
Seidner hurriedly withdrew his suit.
The dismissal was filed on October 13, the same day that attorney Draper would have had to file an answer to the anti-SLAPP motion to explain to the court why his client’s case should not be immediately dismissed by the judge as a harassment suit designed to stifle freedom of speech. Seidner terminated the lawsuit with no concessions from the newspaper. He signed the dismissal without a confidentiality clause that his attorney demanded, but the newspapers refused.
As a newspaper company, Hometown Publishing has a responsibility to the public to report about Seidner’s suit and about the important constitutional protections for free speech and political debate which are at stake in this matter.
As a side note, Seidner did not settle with Jack Throckmorton at the same time. Seidner belatedly demanded that Throckmorton issue a retraction and agree to confidentiality. But because Hometown Publishing’s legal counsel had arranged for Throckmorton’s attorney to file a “joinder” to their motion to strike, the anti-SLAPP motion remained on the court’s calendar after Seidner had settled with Patric Hedlund and Hometown Publishing, sustaining pressure on Seidner to settle again or risk paying Throckmorton’s attorney’s fees if the court granted the anti-SLAPP motion.
Seidner settled with Throckmorton on October 20 for no damages and no retraction. The brief written by Susan E. Seager and Thomas R. Burke of Davis Wright Tremaine LLP gives an eloquent explanation of the public’s rights to free speech, freedom of the press and protection for political debate that Seidner’s suit sought to deny. We are very grateful for the work of the principled professionals who assisted with this effort.
This is part of the October 27, 2006 online edition of The Mountain Enterprise.
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